Legal issues, differing viewpoints lead to impasse

SHIRLEY -- The 1.5-acre property at 44 Horsepond Road may not look like much now, with a small house, a couple of outbuildings and minimal landscaping.

But there's no shortage of natural perks, and when Shawn Hillman bought the place in 2010, his view was more future-oriented.

His two-stage strategy was to first move into the circa 1930s house, which had been vacant for some time and needed work. Rather than tackle a major renovation, however, he figured on fixing it up just enough to comfortably live there while building a new house on the property.

With a construction loan lined up, Hillman moved in and started working on his long-range plans, but he ran into a snag with the septic system and the local Board of Health.

One side of the story

Set far back from the road at the end of a long driveway, the old house looks more like a teardown than a fixer-upper, but the setting is peaceful and private, with woods in back and a stream meandering through.

Hillman, his girlfriend and their pets -- his dog and her pot-bellied pig -- live there now. But due to an ongoing wrangle with the Shirley Board of Health that recently landed him in court, his building plans are in limbo, and he might even have to move out.

Rustic charm

Seated at a picnic table behind the house on a sunny Saturday afternoon, a warm breeze rustled though surrounding trees, chickens clucked in the yard, wild ducks splashed in the nearby stream and geese flew, honking, overhead as Hillman told his side of a complex story, including what he considers bureaucratic hurdles blocking his plans.

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He delved into an envelope full of documents that included assessors maps, site plans and correspondence to illustrate why he thinks the health board is wrong about things he's been told to do versus what he has already done. He described the rock-and-a-hard-place scenario he's stuck in and the pivotal role played by the town's longtime health agent from Nashoba Associated Boards of Health, whose hard-line stance he finds unfathomable and frustrating.

At issue is the distance of the well from the septic system. "Technically, it's in violation of Title V," Hillman acknowledged, citing the state law that sets stringent requirements for septic systems and sets a minimum distance of 50 feet from suction wells such as his.

The engineer he hired obtained variances for a new design, and Hillman checked off "town" as the water supply on the permit application, he said. But he didn't hook up to town water.

The check-off was a miscue based on "information I had at the time," he explained. He said the Water Department told him there was a "stub" off the line in the street for the connection, costing about $5,000 to tap into. He counted on rolling that amount into his construction loan, he said, but there was no stub and the estimate went up substantially.

Making matters worse, the health board informed his lender that there were "concerns" about the property, citing several code violations, Hillman said.

The letter from the Shirley Board of Health to the bank holding his mortgage was among Hillman's papers, but it wasn't clear whether it's linked to the matter at hand.

Health board member Donald "Butch" Farrar later said he doubted it.

He wasn't familiar with the letter, he said, nor was there a copy in Hillman's case file. Since the board rarely gets involved in mortgage matters, however, he surmised that the document might be traced back to a different issue.

A few years ago, when the property was bank-owned, it was the source of a beaver dam backup, causing flooded basements in the neighborhood and alerting the health board. Correspondence with the bank could have stemmed from that incident, Farrar said.

Codes and criteria

Addressing the five-item checklist of mandates the board expects him to meet, Hillman believes at least one should be checked off as completed: water testing. The well's water was tested and results were positive, he said, even though a sample from the kitchen tap showed contamination.

The NABH analysis lab said that outcome was common, he said, noting that without a filter, bacteria often shows up in samples from a faucet that could come from "anywhere," not necessarily the well. Samples from the well pipe were fine, he said.

That was just one test though; the requirement was two separate tests with clean results.

Disputed distance

To prevent contamination in the first place, one code Hillman is struggling with requires a 50-foot distance between septic systems and suction-type wells such as his.

Hillman said his layout meets that criteria, but when the health agent came out, his measurements came up three feet short, recording 47 feet between the well out front and the septic tank behind the house.

The agent was wrong, Hillman said. By his measure, the distance is 51 feet.

Hillman said the health agent went by an inaccurate, outdated site plan showing the tank located six and a half feet from the back of the house, but it's more like 12 feet away.

Hillman said he stuck a piece of wood in the ground to tag the spot, but the agent didn't use it. Pointing to a sketch the agent made of the site in early 2010, Hillman said it was off the mark, since it doesn't show four sheds that were on the property back then but does show a chicken coop that wasn't. He built the coop just last fall, he said.

Anyway, an engineer submitted a new set of plans, Hillman continued, but didn't use the right code for the type of well, which is a "suction well." Besides, the new plan noted measurements as "per owner" and are thus not "certified," he said, but that's the kind of documentation the health board wants.

The board, for its part, has said it would make whatever concessions are possible to help Hillman meet code requirements. But some items are not negotiable. As member Jackie Esielionis pointed out at a meeting last month, their job is to protect residents' health, and part of that is ensuring their homes' wells are safe.

At the same meeting, Chairman Joseph Howlett went over the compliance items listed in a certified letter the board sent to Hillman earlier. "Get a well guy" to provide certification, he advised.

But Hillman considers that an unreasonable demand.

He doesn't know who installed the well, he said, and it would have to be dug up to certify its location now, which would cost more than he can currently afford. "I don't have the money, but I have time" to do necessary work, which the board can inspect, Hillman said.

But the agent won't budge, he said. The health board framed its rules accordingly, in effect giving the agent's advice the weight of law. "I feel like they think I'll give up and give in," Hillman said.

Farrar later said Hillman clearly wants to do things his way, but that's not how it works. As for following the health agent's lead, he said his board has decision-making authority but must also adhere to state health laws and local bylaws.

He explained that membership in the NABH comes with expert technical advice that the volunteer board gives appropriate weight to, but also deviates from when appropriate. "The (health agent) makes recommendations, we make the decisions," Farrar said.

The letter Howlett was referring to cites code compliance items the property owner must meet, he said, and that's about all there is to it. But Hillman was given every variance possible, plus added time, he said.

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